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Flak-Catching With the Lawyerless

by Ralph Warner
Copyright © 1993 Nolo Press

We've made some headway in righting the wrongs of discrimination. But reform hasn't made it over the threshhold of the courtroom doors.

Discrimination against people based on imagined group traits is always nasty--especially when it results in the denial of opportunity to fundamental rights, such as a job, a decent education or a freely-chosen place to live. The United States' powerful commitment to fight discrimination based on race, sexual preference and age--to mention just a few--defines what is best about our nation in the second half of the 20th century.

Unfortunately, despite progress in many areas of our public life, courts remain a stronghold of resistance to the defining ideal that all Americans are entitled to equal treatment. Defined as a "non-lawyer" by the legal establishment, a person who appears on his or her own behalf--or pro per--is routinely treated like a third-class citizen by lawyers and judges, who seem to forget that courts are not their private preserve.

Lack of respect for anyone who is not a card-carrying member of the legal fraternity is obvious from the moment you enter a courthouse. Unlike most government and many private facilities, maps of the building, explanatory pamphlets or an information desk are missing.

Looking more closely at a typical courthouse, the intent to discriminate against pro pers is even more obvious. Some types of favoritism are petty. Lawyers often are provided private work areas and phones, while everyone else is relegated to benches and pay phones.

Other forms of favoritism are far more fundamental. Court clerks will often provide a confused lawyer step-by-step guidance to the wrangling rules of filing or scheduling cases, while rejecting the far more basic questions of non-lawyers with a preemptory nod at a posted sign that reads: Court Clerks Cannot Give Legal Advice--For a Referral to a Lawyer, Call the County Bar Association.

This mean-spirited attitude toward the public is also reflected in the courtroom. Lawyers, even those who pant in ten minutes late, often have their cases heard first. And when a pro per finally does get a chance to have a word in court, the judge is all too likely to greet him or her with a patronizing attitude and a closed mind. For example, someone who asks that an impenetrable hunk of legal jargon be translated into English, makes a small, easily-corrected mistake or even hesitates a second too long is likely to be accused of clogging the court's busy schedule and told to get a lawyer.

Judges often defend the way they treat non-lawyers by comparing themselves to a baseball umpire suddenly faced with novice players who don't know the rules. "We do the best we can under difficult circumstances," they often claim.

Nonsense.

Courts, as arbiters of fundamental rights, have an affirmative duty to make their rules accessible and understandable--something organized sports do far better, incidentally. The present system, under which the legal profession hides both substantive law and legal procedure, while judges then lecture pro pers for being ignorant of both, is pathetic.

To take just a few examples of how our present judicial system discriminates against non-lawyers, consider that:

  • Even though the great majority of issues considered by a judge are unopposed--with success often assured by the right paperwork--no effort is made to provide easy-to-understand forms and instructions.
  • Even though mastering both substantive law and legal procedure necessitates gaining access to good information, little work--individual efforts of a few dedicated law librarians notwithstanding--is done to make law libraries and their materials accessible and understandable to the public.
  • Even though a significant number of judges and clerks are routinely and insultingly hostile to pro pers, absolutely nothing is done to educate them to change their behavior or discipline them if they don't.

To give Americans a decent chance to cope with their routine legal problems without a lawyer, a radical change in judicial attitude is needed--and needed fast. But no relief seems near. Although quick to appoint learned commissions to look into claims of discrimination by minority or female attorneys, for the most part our supposedly learned judges don't even understand how badly they treat the general public.

It's way past time they found out.

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The selected articles originally appeared in the Nolo News and are Copyright © Nolo Press 1996 and reproduced here with permission. If you find them of value, we encourage you to visit Nolo Press at their web site http://www.nolo.com. If you wish to post them on-line or otherwise distribute them, first read Nolo's copyright policy.

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